[Med-privacy] NYT: "Administration Sets Forth a Limited View on Privacy"

[pmarshall]

March 6, 2004

Administration Sets Forth a Limited View on Privacy

By ROBERT PEAR and ERIC LICHTBLAU

             WASHINGTON, March 5 =97 In a sharp departure from its past
insistence on the sanctity of medical records, the Bush
             administration has set forth a new, more limited view of
privacy rights as it tries to force hospitals and clinics to turn
             over records of hundreds and perhaps thousands of
abortions.

Federal law "does not recognize a physician-patient privilege," the
Justice Department said last month in court papers that sought
abortion records from Planned Parenthood clinics in California, Kansas,
Missouri, Pennsylvania, New York City and Washington.
Moreover, the department said in another abortion case, patients "no
longer possess a reasonable expectation that their histories
will remain completely confidential."

Health lawyers and privacy experts said that position reflected a
significant shift after six years in which Bush and Clinton
administration officials had promised to strengthen the confidentiality
of medical records.

Two federal judges have also expressed alarm over the government
position. The latest blow to the government was on Friday, when
a federal district judge in San Francisco denied a demand by the Justice
Department for access to abortion records from a public
hospital there and from six Planned Parenthood affiliates in the county.

The judge, Phyllis J. Hamilton, said forcing the providers to turn over
the records would undermine the privacy rights of patients
and could dissuade some from seeking treatment.

"There is no question that the patient is entitled to privacy and
protection," Judge Hamilton said. "Women are entitled to not
have the government looking at their records."

Judge Hamilton said the records included "potentially identifying
information of an extremely personal and intimate nature" like
age of first sexual experience, types of contraception used and details
of abuse or sexually transmitted diseases.

The city said federal officials were seeking the records of 2,700
patients.

What began late last year as a fairly modest government effort to obtain
records appears to have ballooned into a systematic
effort in courts around the country to define the limits of medical
privacy.

Health care professionals and privacy advocates say the government's
position has broad implications beyond abortion. If
patients have no reasonable expectation of privacy, the critics say, the
government may be more aggressive in seeking records
from hospitals, insurance companies and other businesses in criminal,
civil and administrative cases.

The Justice Department says it needs the records to defend a new law
that prohibits what opponents call partial-birth abortions.
Doctors and clinics have challenged the law, saying it bars them from
performing certain medically needed abortions.

A spokesman for the White House, Trent D. Duffy, defended the subpoenas.
The administration is "strongly committed to medical
privacy," and the subpoenas are "completely consistent" with federal
privacy rules, Mr. Duffy said.

A spokeswoman for the Justice Department, Monica M. Goodling, said, "We
are respecting patient privacy by having hospitals
delete any information that identifies specific patients."

President Bush was elected on a platform that proclaimed support for
medical privacy. In April 2001, he said he would protect
"the right of every American to have confidence that his or her personal
medical records will remain private."

At the time, Tommy G. Thompson, secretary of health and human services,
said, "We are giving patients peace of mind in knowing
that their medical records are confidential and their privacy is not
vulnerable to intrusion."

The federal rules, adopted under a 1996 law, have touched off a quiet
revolution in health care. Doctors, hospitals and drugstores
routinely give "notices of privacy practices" to patients, assuring them
that personal information will be protected.

Privacy advocates say the administration has rolled back some safeguards
adopted by President Bill Clinton, and the Justice
Department says now that the 1996 law is no obstacle to its efforts to
obtain abortion records. In court papers, the Justice
Department says the records are needed to show that the banned procedure
is almost never medically necessary and "poses
serious risks."

Dennis J. Herrera, the city attorney for San Francisco, said he was
deeply troubled by Washington's stance.

"Any reasonable person has an expectation that their medical records are
going to be kept private," Mr. Herrera said. "If
physicians and patients are left wondering whether their records are
going to be made public, that has a real chilling effect. How
candid are people really going to be with their doctors?"

The abortion recipients are not directly involved in the litigation, and
the government has not told them that it wants their
records.

The Justice Department says the federal rules allow the disclosure of
medical records in judicial proceedings, with safeguards to
protect patients' names. But doctors and hospitals say state laws often
prohibit such disclosures, even with deleted names.

Representative Edward J. Markey, the Massachusetts Democrat who is
co-chairman of the Congressional Privacy Caucus, said the
records would have clues that could identify patients.

"How many hundreds of women, or thousands, will have the frightening
experience of their medical records being handed over to
the Justice Department as part of a fishing expedition?" Mr. Markey
asked.

Representative Nita M. Lowey, Democrat of New York, said: "This
administration claims to have taken great pride in adopting
regulations aimed at ensuring the sanctity and privacy of medical
records. But in an attempt to defend the so-called partial-birth
abortion ban, it seems to have lost sight of its promises."

The demand for files is not limited to records of that type of abortion,
known medically as intact dilation and extraction. The
government also seeks these materials for the last three years:

=B6Records of any second-trimester abortion in which the patient suffered=

a medical complication, regardless of the technique.

=B6Records of any case in which a doctor caused a fetus's death by
injecting chemical agents in the womb in the second or third
trimester.

=B6Documents related to any medical malpractice claims arising from
certain abortions.

=B6The names of all doctors who have performed any type of abortion.

The recent subpoenas appear to have struck a nerve with Attorney General
John Ashcroft's critics, because of his history as an
outspoken opponent of abortion in almost all cases. Advocates of
abortion rights said they did not trust his department to judge
whether abortions were medically necessary.

The federal standards have real-life implications for people like Sally
Scofield, a legal secretary in Manhattan, Ill., who has
joined a suit to fight the rules. After knee surgery and spinal
injections in 2002, Ms. Scofield said, she was shocked to learn
that her records had been given without her consent to a medical
research business, an investigation company and a photocopying
service.

"I have nothing to hide about my knee or my spine," Ms. Scofield said.
"But every woman will tell you she has medical records she
does not want shared. Rape victims, child molestation, incest, H.I.V.,
there are a lot of things people don't need to know about."

Carolyn Marshall contributed reporting from San Francisco for this
article.


                   Copyright 2004 The New York Times Company